Preserving Constitutional Norms in Times of

Permanent Emergencies

Sanford Levinson

How important is it that the President and his associates conform to constitutional
or international norms? Consider the use of torture as a means of interrogation,
which clearly violates both international and domestic laws. But to what extent
should the President view himself as necessarily bound by such legal norms? At
the end of the day, with regard to great issues of war and peace, are there (or
should there be) significant legal constraints on presidential decisionmaking, or
are such constraints better defined as political and, possibly, moral? Of course,
another possibility is that we will simply redefine existing legal norms in order to
remove any discomfort that might be generated by accepting the proposition that
the actions of unimpeached, perhaps even celebrated, presidents violate norms of
what we like to think of as our basic legal order.
The single legal philosopher who provides the best understanding of the legal
theory of the Bush Administration is Carl Schmitt, a brilliant German theorist of
the Weimar period who became, not altogether coincidentally, the leading
apologist for Hitler’s takeover of what Schmitt viewed, perhaps correctly, as a
hopelessly dysfunctional German polity.1 Just to be clear, I do not believe that the
Bush Administration is analogous in any serious way to the Nazi regime. But that
may be cold comfort if we define the issue before us as whether or not the United
States government is on a path to a far more authoritarian mode of governance
than we have heretofore accepted as “the American way.”
However, as I thought more deeply about these issues, I found myself turning to
the history of American constitutional development. That history teaches that what
we are experiencing today is only the latest episode in what is in fact an ongoing
debate that is literally as old as the Constitution itself about the meaning of constitu-
tional restraints in times of “emergency.” We should always remember the admoni-
tion of Ecclesiastes that there is nothing new under the sun, least of all the imagining
(and, alas, the reality) of catastrophe and of the appropriate response to its occur-
rence or even the perceived risk of catastrophe. What is new, perhaps, at least since
the seventeenth century, is the phenomenon of constitutionalism as a way of organiz-
ing our collective response to the travails posed by life and therefore the question of
whether the “rule of law” may genuinely limit decisionmakers’ options.
What, after all, do we mean by constitutionalism? Although a number of different
answers might be offered if one were asking the question at a political science

Constellations Volume 13, No 1, 2006. © Blackwell Publishing Ltd., 9600 Garsington Road, Oxford OX4 2DQ, UK
and 350 Main Street, Malden, MA 02148, USA.
60 Constellations Volume 13, Number 1, 2006

seminar, if the we being referred to is American citizens or others influenced by one

or another variety of liberal political theories since John Locke, the answer almost
invariably involves some notion of limited government and the linked notion of a
“government of laws and not of men (and, today, women).” That is, we expect our
leaders to subordinate their own goals and agendas (and visions) to the impersonal
constraints of the Constitution, to which in the United States they all take an oath.
The central mantra of those venerated as the founders of the United States
Constitution was, after all, that the national government established by the 1787
Constitution was a “limited government of assigned powers,” and a recurrent
trope of opponents of any controversial extension of governmental power is that
represents not only bad policy, but also the “death of constitutionalism” at least as
we know it. As one looks back on some of these articulated fears, we rather
unkindly dismiss them, not least because, as a matter of historical fact, the Court
and country did accept the legitimacy of the enhanced governmental power that
was being described as the death of our constitutionalism, and most analysts and
citizens are satisfied with the result. But this may be just to say that all of us live
within history, and that what we accept as the legal norm, including a very power-
ful national government, for example, is indeed stunningly different from the
constitutional order that was viewed as “normal” (and normative) by the judges
who believed that their skies were falling.
A key problem, though, is that from the very beginning of American history,
such notions of limitations and absolute fidelity to law have contended with
equally compelling emphases on the importance of having leaders who were
willing to respond to exigencies of the moment and to do what was “necessary,”
regardless of the law.
One can have little doubt that many of the Framers were familiar with John
Locke’s Second Treatise on Government. One of the most important arguments
made by Locke concerns what he calls “prerogative,” particularly of the executive.
It is true that Locke views governments as instituted to protect individual rights,
but this does not entail, for him, an at-all-times limited government. The “Power
to act according to discretion, for the publick good, without the prescription of the
Law, and sometimes even against it, is that which is called Prerogative.…This
power whilst imployed for the benefit of the Community, and suitably to the trust
and ends of the Government, is undoubted Prerogative, and never is questioned.”
Indeed, “the People…are far from examining Prerogative, whilst it is in any
tolerable degree imploy’d for the use it was meant; that is, for the good of the
People, and not manifestly against it.”2 Though Locke was, of course, writing
against the background of the English monarchy (whose powers he in fact wished
to limit), his theoretical endorsement of prerogative is most certainly not confined
to monarchs. And, indeed, one is hard-pressed to understand American (or any
other) constitutionalism without including a place for the “prerogative” of leadership
to ignore the law on occasion. The question, of course, is whether this “completes
constitutionalism,” as it were, or in fact fatally undercuts it.

Constellations Volume 13, No 1, 2006. © 2006 Blackwell Publishing Ltd.

 Constitutional Norms and Permanent Emergencies: Sanford Levinson 61

Moreover, consider two statements from the foundational American case of

McCulloch v. Maryland: Chief Justice John Marshall emphasized the importance
of always remembering that the “constitution we are expounding,”3 and for him
“a constitution [is] intended to endure for ages to come, and, consequently, to be
adapted to the various crises of human affairs.”4 Interestingly enough, Marshall
himself italicized the word crises¸ though it seems at least equally important to
emphasize the phrase “to be adapted.” Indeed, University of Michigan law
professor James Boyd White has described Marshall’s opinion in McCulloch “as
less an interpretation of the Constitution than an amendment to it, the overruling
of which is unimaginable.”5 In effect, then, at least according to White, one might
see McCulloch as exemplifying a certain kind of judicial “prerogative” to adjust
(or adapt) the Constitution to the crises of government.
Consider in this context one of the objections to the original US Constitution
by George Mason, a leading Virginian who was one of only three members of the
Convention who refused to sign the Constitution. The usual explanation is that
Mason was upset that the original Constitution, because it included no Bill of
Rights, therefore raised the specter of a too-powerful, unlimited, government.
That is surely correct, but it is not the whole story. After all, Mason echoed the
earlier quotations from Randolph and Hamilton in his own statement to the Phila-
delphia Convention on June 20, 1787 that “[i]n certain seasons of public danger it
is commendable to exceed power.” He praised those who had negotiated the
“treaty of peace, under which we now enjoy the blessings of freedom” for
“exceed[ing] their power” and earning “the approbation of the public.”6 The
complexity of Mason’s views is further demonstrated in his “Objections to the
Constitution of Government formed by the Convention,” where he unexpectedly
expresses his concerns about a part of the Constitution that would ordinarily be
understood as an important guarantee of individual rights, the ex post facto clause
prohibiting retroactive criminal legislation. He is critical of the fact that “Both the
general Legislature and the State Legislatures are expressly prohibited” from
passing such laws. The reason is that “there never was, or can be a Legislature but
must and will make such Laws, when necessity and public Safety require them;
which will hereafter be a Breach of all the Constitutions in the Union, and afford
precedents for other innovations.”7
How do we understand this objection? He is, I believe, saying that it is inadvis-
able absolutely to prohibit state and national legislatures from passing ex post
facto laws because “necessity and public Safety” may sometimes require them. A
categorical “thou shalt not” is therefore a mistake. But, note carefully, he is not
merely suggesting that it will be unfortunate in the future if such legislatures find
themselves unable to pass legislation thought “necessary” to protect the “public
Safety.” Rather, he is asserting that a responsible legislature will, like the Founders
in Philadelphia, transcend their assigned power and pass legislation that is, at least
on paper, beyond their capacities. They will, that is, prefer to “Breach” the Consti-
tution rather than appear impotent in the face of “necessity.” And such breaches

Constellations Volume 13, No 1, 2006. © 2006 Blackwell Publishing Ltd.

62 Constellations Volume 13, Number 1, 2006

will, he believe, serve ultimately to negate the idea of constitutional limits at all.
Far better, he seems to suggest, that the Constitution be written, at least with regard
to ex post facto laws, in a more “conditional” modality. That is, ex post facto laws
ought not be passed except when “necessity and public Safety” require them.
Though discussing a different part of the Constitution, Madison makes a
similar point in Federalist 41: “It is in vain to oppose constitutional barriers to the
impulse of self-preservation. It is worse than in vain; because it plants in the
Constitution itself necessary usurpations of power, every precedent of which is a
germ of unnecessary and multiplied repetitions.”8 One might view the “self” that
is being preserved as the political system itself, which raises the classic specter of
the tension between polity and individual rights. But, of course, as I have already
suggested, one can also view the “selves” who are being protected as the
members themselves of a well-ordered polity. This has important implications, of
course, for the general enterprise of constitutional design. A basic question is pre-
cisely the extent to which a well-designed constitution should be “rigid,” pretending
to an impermeability to change and “adaptation” even in times of perceived emer-
gency, or, on the contrary, flexible enough even to “suspend” the ordinary opera-
tions of the constitution order when such emergencies present themselves. The
United States is a notable example of the former, save for the permission granted
by Article I to suspend the writ of habeas corpus should Congress so determine.
Yet the most famous such suspension in American history took place at the uni-
lateral behest of President Lincoln, an action found unconstitutional by Chief
Justice Roger Taney in Ex parte Merryman.9 Lincoln basically ignored Taney’s
decision, and, of course, he is widely regarded as America’s greatest president,
from whom contemporary analysts continue to draw important lessons.
Such questions about the relative “rigidity” and “flexibility” of constitutional
forms, including the recognition of “prerogative” powers, can arise with regard
both to declarations of rights and to the governing structures of the societies
themselves. I will concentrate on the former in the remainder of this paper,
though one should have no doubt that structures are at least as important as rights.
With regard to rights, we might begin with the grammatical form of the First
Amendment added to the Constitution in 1791, which states that Congress shall
pass “no law” abridging the freedom of speech. Justice Hugo Black, the greatest
civil libertarian of the twentieth century, built a judicial career in part on asking,
as we might put it today, “what part of ‘no’ do you not understand?” Indeed, he
proudly defined himself as an “absolutist” with regard to freedom of speech and
the press, not least because that’s just what the Constitution, as he read it,
required him to do. Many civil libertarians, both in the mid-twentieth century and
now, applaud Black’s “absolutism,” especially in times like our own when basic
civil liberties are under attack. But it is helpful to consider as well a text from the
original Constitution, the Contract Clause of Article I, Section 10: “No state
shall…pass any…impairing the obligation of contracts.” Again, one might ask
“what part of ‘No state shall pass’ is ambiguous?”

Constellations Volume 13, No 1, 2006. © 2006 Blackwell Publishing Ltd.

 Constitutional Norms and Permanent Emergencies: Sanford Levinson 63

But, of course, every well-trained contemporary lawyer realizes – and we who

are law professors teach our students – that whether or not these texts are linguis-
tically ambiguous is quite beside the point. The fact is that “no law” does not
mean “no law”; rather, it means, in our contemporary world, that the state must
demonstrate what we call a “compelling state interest” in order to justify the
transgression of the stipulated norm. To be sure, there is a strong presumption
against the legitimacy of laws that abridge freedom of speech, but a strong
presumption is not, obviously, the same thing as an absolute prohibition. In our
contemporary constitutional universe, to label oneself a First Amendment
“absolutist” is the equivalent of branding oneself as intellectually unsophisticated
and, indeed, something of a menace to the deep interests of the polity.
The contract clause is, perhaps, even more illuminating as to the difficulty of
believing that the Constitution “means what it says,” at least to legislators and
judges who are called upon to interpret it as a living reality rather than literary
artifact. By happy coincidence, what I believe to be the greatest single set of
opinions in the history of the United States Supreme Court was delivered in a
1934 case, Home Building & Loan Association v. Blaisdell,10 that examined the
meaning of the contract clause. Chief Justice Charles Evans Hughes’s superb
opinion for the majority is followed by an equally well-argued and gripping
dissent by Justice George Sutherland.11 No set of opinions repays closer study
with regard to the complexities involved in what it means to take the Constitution
seriously as a set of understandings – or an articulation of “fundamental rights” –
that structure the conduct of American politics.
The opinions in Blaisdell are important, though, not only because of what
might be termed their theoretical excellence, but also because they confront
directly the all-important question of how we are to understand the Constitution
(and the role of legislatures and courts) during a time of emergency. And no one
should doubt that the world-wide depression was viewed as an emergency. In the
background loomed the possibility of popular revolution and the installation of
“national socialist” or fascist parties as in Italy and Germany. Communism, of
course, also represented a widely feared possibility, though, as a matter of fact, no
country responded to the Depression by going communist; it was fascism that
seemed on the march.
One way of conceptualizing Blaisdell is by asking whether basic constitutional
norms, including the “absolute” ban on state’s interference with the enforcement
of pre-existing contracts, presuppose a background of social and political stability.
If so, this suggests that they are subject to suspension whenever these background
conditions dissolve into instability or “emergency.” Such emergencies are some-
times viewed as “states of exception,” a term associated especially with Carl
Schmitt. It was Schmitt, for example, who wrote that “[t]here exists no norm that
is applicable to chaos,”12 or perhaps even “crisis.” The chaos that most struck him
during the 1920s in Germany was economic; most of the more than 250 suspen-
sions of the Weimar Constitution, as allowed by the notorious Article 48,

Constellations Volume 13, No 1, 2006. © 2006 Blackwell Publishing Ltd.

64 Constellations Volume 13, Number 1, 2006

involved the attempt by Germany to respond to the difficulties of managing a

post-Versailles economy in a society bitterly divided, at the margins, between
Communists and Nazis. Although the Italian social theorist Giorgio Agamben has
written that “the state of exception tends increasingly to appear as the dominant
paradigm of government in contemporary politics,”13 it should now be clear that
there is in fact nothing new about the notion of the “exception” or “emergency.”
Indeed, the political scientist Clinton Rossiter, who published in 1948 a brilliant
and disturbing book, Constitutional Dictatorship, noted that the idea goes back at
least to ancient Rome, which institutionalized the role of the “dictator” who could
safeguard the constitutional order in a time of emergency. Schmitt was thus build-
ing on an idea with an ancient lineage.
I have no idea whether Charles Evans Hughes and his fellow justices who
decided Blaisdell had read Schmitt or other disputants in the Weimar jurispruden-
tial debates, but I have no doubt that he was familiar with the overarching debate
occurring throughout the West about the ability of traditional notions of the “rule
of law” to survive the development of what my colleague Philip Bobbitt calls the
“nation-state” and its newly embraced duties to concern itself with the economic
welfare of its citizens.14 Many Americans, of course, had become debtors during
the Depression, within a constitutional order that was generally stacked, as exem-
plified by the Contract Clause itself, in favor of creditors. One might, after all,
view the Contract Clause as establishing a “fundamental right” of creditors to be
paid, regardless of the circumstances that make payment onerous for debtors. That
notion did not survive Blaisdell. Indeed, the case is an essential symbol of the
transformation of the duty of the state – and, perhaps, of the notion of “fundamental
rights” – in this regard.
The Minnesota legislature passed the Minnesota Mortgage Moratorium Law in
1933 in response to what it explicitly referred to as the “emergency” generated by
the Great Depression for homeowners. Even today, of course, rising unemploy-
ment – not to mention unanticipated medical expenses – can generate difficulties
for marginal homeowners faced with the task of covering their monthly pay-
ments. But it is important to understand that mortgages were then structured very
differently from the ones we are used to, which have, in the main, fixed and equal
payments from the first to the last month of the term of the mortgage. Then, how-
ever, it was common for relatively low monthly payments to end with a large
“balloon payment” in the last month. Thus one might owe, say, $100/month until
the 60th or 120th month, when the payment would be $5000. If one has a decent
job, then, obviously, one would simply take out a new mortgage, “rolling over”
the balloon payment until the end of the new contract. The problem, of course, is
that the Depression meant that many ostensible homeowners no longer had decent
jobs or could rely on a reasonable return from their farms. Thus they actually had
to come up with the $5000 or face loss of their home.
As banks started foreclosing loans upon failure to meet the obligations of the
mortgage, the Minnesota legislature intervened with the “moratorium” law,

Constellations Volume 13, No 1, 2006. © 2006 Blackwell Publishing Ltd.

 Constitutional Norms and Permanent Emergencies: Sanford Levinson 65

which basically freed beleaguered homeowners from the burden of their contract.
So long as they continued to pay a reasonable rental value of the home, they could
remain in it. The hope, obviously, was that the economy would begin to recover.
In any event, according to the legislature, the Act was to remain in effect “only
during the continuance of the emergency and in no event beyond May 1, 1935.”
Presumably by then the home dwellers would again be credit-worthy and both
they and the creditor-banks would be satisfied to roll over the mortgage as
initially more-or-less planned.
The Home Building & Loan Association had foreclosed the Blaisdells’
fourteen-room house – they lived in three of the rooms and rented out the other
rooms – upon their failure to meet the terms of their mortgage. The Association
then bought the property at the foreclosure sale for approximately two-thirds of
its market value. However, operating under the law, the Blaisdells had obtained
an extension of the redemption period, which meant that they had until May 1935
to “redeem” their home by paying the Association $4,056.39. The Blaisdells were
required in the interim to pay what a court has ascertained to be the fair market
rental value of $40/month.
The problem with the legislation, at least from a constitutional perspective,
appears glaringly obvious. Recall the Contract Clause of Article I, Section 10 and its
command that “No state shall…pass any…impairing the obligation of contracts.”
The bank argued, understandably, that the Moratorium law was in clear violation of
the Contract Clause. The Blaisdells’ obligation was to pay off their mortgage in
1933, not in 1935. Minnesota’s declaration of the moratorium was, therefore, an
impairment of the bank’s contractual rights. What more is there to say?
Not surprisingly, the answer to this last question is, Quite a bit. Indeed, the
Supreme Court, in an opinion written by Chief Justice Hughes, upheld the law
against the Bank’s challenge. No one seriously argued that Minnesota had not
“impaired” the Association’s “obligation of contract.” But, for the Minnesota
Supreme Court, this was basically beside the point. Times were perilous. After
offering a summary of the ravages facing the state and nation, it concluded that
“the court cannot well hold that the legislature had no basis in fact for the con-
clusion that an economic emergency existed which called for the exercise of the
police power to grant relief.”15
A concurring Minnesota judge tellingly compared “[t]he present nationwide
and worldwide business and financial crisis” to a “flood, earthquake, or distur-
bance,” depriving “millions of persons in this nation of their employment and
means of earning a living for themselves and their families” and, therefore, gener-
ating “widespread want and suffering among our people ...” (423). The reference
to “natural disasters” is significant. As Michelle Dauber Landis has brilliantly
argued, a basic issue throughout American history is whether individuals’ suffer-
ing was viewed as their own fault or, on the other hand, the result of outside
forces that they could not realistically be expected to have protected themselves
against.16 To be the faultless victim of such a disaster is to make oneself eligible

Constellations Volume 13, No 1, 2006. © 2006 Blackwell Publishing Ltd.

66 Constellations Volume 13, Number 1, 2006

for public sympathy and, more important, aid, regardless, perhaps, of constitu-
tional limits.
Chief Justice Hughes agreed that the case required the Court to “consider the
relation of emergency to constitutional power.” He went on to write, in oft-quoted
paragraphs:

Emergency does not create power. Emergency does not increase granted power or
remove or diminish the restrictions imposed upon power granted or reserved. The
Constitution was adopted in a period of grave emergency. Its grants of power to the
Federal Government and its limitations of the power of the States were determined
in the light of emergency, and they are not altered by emergency.…
While emergency does not create power, emergency may furnish the occasion for
the exercise of power.
Although an emergency may not call into life a power which has never lived, never-
theless emergency may afford a reason for the exertion of a living power already
enjoyed. (425–26)

Can one take such language seriously, or is this a mixture of a pathetic and valiant
effort to deny a central reality of American constitutionalism, which is indeed that
perceived emergencies from the very origins of the Constitution “call[ed] into
life” powers that had never theretofore lived? Not surprisingly, my own answer is
that Hughes here is the equivalent of the “unreliable narrator” in much contem-
porary fiction, even if, perchance, he believed his own argument. But we are almost
literally kidding ourselves if we accept his language as descriptively or conceptu-
ally accurate; instead, we should recognize the vitalizing role of emergencies and
then decide whether what is called forth is like Frankenstein’s monster.
Hughes canvasses many prior decisions of the Supreme Court that, he argues,
legitimate the kind of law passed by Minnesota. “Disasters” obviously occurred
prior to the Great Depression, and there was much precedent suggesting the
powers of government to respond to them. To be sure, he concedes that no case
justifies “a construction which would permit the State to adopt as its policy the
repudiation of debts or the destruction of contracts or the denial of means to
enforce them” (439). That, he insists, in not the case here. Instead, he argues that
acceptance of this general principle does not apply under conditions when
“a temporary restraint of enforcement may be consistent with the spirit and
purpose of the constitutional provision” (ibid., emphasis added), which, he says,
is to preserve a functioning economy.

It cannot be maintained that the constitutional prohibition should be so construed as

to prevent limited and temporary interpositions with respect to the enforcement of
contracts if made necessary by a great public calamity such as fire, flood, or earth-
quake. The reservation of state power appropriate to such extraordinary conditions
may be deemed to be as much a part of all contracts as is the reservation of state
power to protect the public interest in the other situations to which we have
referred. And if state power exists to give temporary relief from the enforcement of

Constellations Volume 13, No 1, 2006. © 2006 Blackwell Publishing Ltd.

 Constitutional Norms and Permanent Emergencies: Sanford Levinson 67

contracts in the presence of disasters due to physical causes such as fire, flood or
earthquake, that power cannot be said to be nonexistent when the urgent public
need demanding such relief is produced by other and economic causes. (439–40,
emphasis added)

It should be crystal clear that Chief Justice Hughes, like, presumably, the other four
justices in the majority, basically agreed with the Minnesota legislature about the
exigencies of the moment and the need for governmental action. My confidence is
based on a single sentence: “It is always open to judicial inquiry whether the
exigency still exists upon which the continued operation of the law depends” (442).
Blaisdell, then, is not illustrative of judicial abdication of reviewing authority and a
concomitant rubber-stamping of legislative action. Indeed, the court itself must
determine whether “the exigency still exists” that justifies the extraordinary action,
however it is described. This is no small point, as shall be seen presently.
Justice Sutherland wrote a probing dissent, based largely on the text of the
Contract Clause and the “original intent” of its supporters, who saw it precisely as
a way of heading off debtor-relief legislation like the moratorium. It is not, of
course, that Minnesota was without legal resources to help those losing their
homes; the legislature could, for example, have raised taxes in order to fund a
program by which zero-interest loans could be given to honest, though economic-
ally downtrodden, Minnesotans that would have allowed them to comply with
their contractual obligations. It is obvious why a legislature would prefer to avoid
raising taxes and instead foist the costs of what was in fact a public welfare
program on banks and their customers. In any event, Sutherland concluded his
dissent with these ringing words:

[W]hether the legislation under review is wise or unwise is a matter with which we
have nothing to do. Whether it is likely to work well or work ill presents a question
entirely irrelevant to the issue. The only legitimate inquiry we can make is whether
it is constitutional. If it is not, its virtues, if it have any, cannot save it; if it is, its
faults cannot be invoked to accomplish its destruction. If the provisions of the
Constitution be not upheld when they pinch, as well as when they comfort, they
may as well be abandoned. (483)

If one sentence can be said to capture the essential dilemma of constitutionalism, it

is surely this last one: What do/should we do when we find the Constitution to
“pinch” instead of to “comfort”? I have already suggested that our history suggests
that, altogether understandably, most persons prefer a “comforting” constitution,
one with what I have elsewhere called “happy endings” to constitutional conundra,
than one that feels hurtful and, indeed, suggests that the Constitution, at bottom,
commands tragic rather than comic outcomes when faced with dilemmas.17
I now turn to consideration of our present situation. On the one hand, I
believe that the Bush Administration threatens the American constitutional
order – and, for that matter, the edifice of world order built in the aftermath of

Constellations Volume 13, No 1, 2006. © 2006 Blackwell Publishing Ltd.

68 Constellations Volume 13, Number 1, 2006

World War II – more than any other administration in my lifetime. On the other
hand, I confess that I have some difficulty constructing a satisfying language to
make this argument. Or, more to the point, it is unclear to me whether my
criticisms follow from what might be termed my “professional expertise” as a
professor of constitutional law or, rather, reflect my politics as an admittedly very
partisan Democrat. Normally, my own political identity would be an inappropri-
ate topic for discussion in an academic article. However, I increasingly believe
that the discussion of emergency powers is ultimately a profoundly political one,
with law, at least as traditionally conceived, having relatively little to do with the
resolution of any truly live controversy.
Consider for a moment Abraham Lincoln. Can one possibly decide whether to
condemn Lincoln without taking a political stand on the merits of the preserva-
tion of the Union? Is not the same true with regard, say, to Franklin Roosevelt’s
constitutionally dubious “lend-lease” policy by which American destroyers were
traded to Great Britain in return for naval bases in the North Atlantic? And one
could go on and on, marching through the cases turning on the presence of
“compelling interests” that justify the abrogation of traditional norms.
My title refers to the possibility of our living now in a world of “permanent
emergency.” I think that is true, for reasons I shall elaborate in a moment. But it
should now be clear that in some ways the entirety of American history includes
the presence of emergencies, even if no single emergency has had the perma-
nence likely to be the case with the “global war on terror.” But an impressive – or
depressing – number of years or American national life have been spent fighting
wars, some declared, many more not, against foreign enemies, fellow American
citizens between 1861–1865, or myriads of American Indians who had the effron-
tery to resist the seizure of their homelands. If we add to this the years featuring
significant economic downturns or the occurrence of “natural disasters” whose
victims made a claim on the public fisc, we might well find that years with
proclaimed “emergencies” outnumber placid years of ostensible normality. I find
it sobering to realize that my own life, which began in 1941, has been spent in
“wars,” whether of the shooting kind, as in World War II, Korea, Vietnam, Iraq,
Kosovo, and Iraq again, or the “cold” kind, as with the Soviet Union, or the more
metaphorical, but no less constitutionally significant, kind such as the American
“war” on drugs that has operated to limit many of constitutional rights against
aggressive police behavior.18 Even were the “global war on terror” declared over
tomorrow, there would be more than enough “emergencies” to assure that the
basic tension of which I am speaking would remain.
So on to the Bush Administration. I have already indicated my belief that the
best entry-point into the jurisprudence of that administration is Carl Schmitt, who
elaborated a powerful theory of an Executive dictator who would serve as “guardian
of the Constitution” or, perhaps more accurately, the Nation, against attacks by its
enemies. An essential function of the Executive is in effect to seize the most basic
attribute of “sovereignty,” which, according to Schmitt is the ability to “decide[]

Constellations Volume 13, No 1, 2006. © 2006 Blackwell Publishing Ltd.

 Constitutional Norms and Permanent Emergencies: Sanford Levinson 69

on the state of the exception.”19 One should recognize that what begins as “the
exception” can, quite easily, over time be redefined as the new “normal.” Thus,
says Schmitt, “For a legal order to make sense, a normal situation must exist, and
he is sovereign who definitely decides whether this normal situation actually
exists. All law is ‘situational law.’ The sovereign produces and guarantees the
situation in its totality. He has the monopoly over this last decision.”20
It would be a profound, perhaps wishful, mistake to believe that Schmitt can
simply be dismissed as a Nazi-sympathizing anti-Semitic fascist The American
political scientist Clinton Rossiter, who ironically is probably best known as the
editor of the most widely used edition of The Federalist, published Constitutional
Dictatorship in 1948. Perhaps tellingly, it was republished after a half-century in
2002 with a cover picture showing the burning Twin Towers juxtaposed with a
seemingly burning Constitution. Rossiter’s position has distinctly Schmittian
overtones: “[A] great emergency in the life of a constitutional democracy will be
more easily mastered by the government if dictatorial forms are to some degree
substituted for democratic, and if the executive branch is empowered to take
strong action without an excess of deliberation and compromise.”21 An executive
branch that believes itself “empowered to take strong action without an excess of
deliberation and compromise” is, I believe, an almost perfect description of the
Bush Administration.
The defining feature of the Bush Administration is the centrality of the “global
war on terror” and the associated freedom this gives the President to make any
decision he deems suitable with regard to carrying out this war. This freedom
applies both to what is sometimes called “the law of war” and “the law in war.”
As to the first, President Bush has basically claimed a monopolistic ability to
decide when and against whom the United States shall unleash military power,
regardless of what Congress or, even more certainly, the United Nations, might
think. In fairness to President Bush, not only were similar claims made by his
father at the time of the first Iraq War, but, just as significantly, President Clinton
also went to war in the South Balkans without bothering very much about either
congressional or United Nations authorization. As to “the law in war,” surely the
most significant debate concerns the propriety of torture.
One aspect of that debate involves the extent to which the executive branch
(which includes, of course, the Central Intelligence Agency) is bound by inter-
national and domestic laws prohibiting torture (however defined). Both issues are
central to the notorious memorandum written for the Office of Legal Counsel by
John Yoo, who has returned to the University of California Law School, and
submitted under the signature of Jay Bybee, then the head of the OLC and now a
member of the Ninth Circuit Court of Appeals, to Alberto Gonzales, then White
House Counsel, now, of course, the Attorney General of the United States.
The essential background of the ensuing discussion is that federal law clearly
and unequivocally bars the use of torture by any official of the United States,
without exception. This should scarcely be surprising inasmuch as the United

Constellations Volume 13, No 1, 2006. © 2006 Blackwell Publishing Ltd.

70 Constellations Volume 13, Number 1, 2006

States Senate ratified, in the name of the United States, the United Nations
Convention against Torture, Article 2 of which states not only that “Each State
Party shall take effective legislative…measures to prevent acts of torture in any
territory under its jurisdiction,” but also that “No exceptional circumstances,
whatsoever, whether a state of war or a threat of war, internal political instability
or any other public emergency may be invoked as a justification of torture.”22 No
right, then, is more fundamental that the right not to be tortured. Moreover, Article 3
states that “No State Party shall expel, return, or extradite person to another State
where,” in language added by the Senate, it is “likely” that there would be a “dan-
ger of being subjected to torture.” It would seem that the President’s Article II
duty to “take care” that the laws be faithfully executed would render invalid
almost any argument that he has the authority to order torture or even to “render”
suspects to countries where torture is commonly practiced (especially, it should
go without saying, if the point of the “rendition” is to take advantage of the
willingness of the host countries to engage in torture as a means of interrogation).
This is not the position of the Bush Administration, at least from August 1,
2002, until December 30, 2004, when the earlier memorandum was withdrawn.
In that earlier memorandum, the OLC construed the president’s authority as
commander-in-chief to include the overriding of any such apparent barriers to
torture. “In order to respect the President’s inherent constitutional authority to
manage a military campaign against al Qaeda and its allies, [statutory law] must
be construed as not applying to interrogations undertaken pursuant to his
Commander-in-Chief authority.”23 That is, it would be unconstitutional to limit
the president’s ability to authorize torture.
As it happens, the discussion of the president’s commander-in-chief power
was eliminated from the December 30, 2004 memorandum, but the administra-
tion, and its new Attorney General, never repudiated the discussion, in the way
that it explicitly repudiated the extraordinarily narrow definition of torture that
was also part of the earlier memorandum. Instead, the administration’s position is
that discussion of the president’s legal authority to order torture is irrelevant
because the United States simply does not torture. This is almost certainly a lie,
though, sad to say, very few people in the United States seem to care. I have no
doubt that the administration’s position is precisely that set out by Professor Yoo
and Judge Bybee in the withdrawn memo, though it is now what might be termed
a “secret” position.
Consider this, however: If the president is authorized to engage in unilateral
preventive wars, or to authorize torture, then are there any limits to the president’s
“emergency power”? Charles Evans Hughes once notably stated that “We live
under a Constitution, but the Constitution is what the judges say it is.”24 Is what
might be termed the “Bush corollary” that “we live under a Constitution, but the
Constitution is what the President, as Commander-in-Chief,” says it is?
One need not turn only to a fascist sympathizer like Carl Schmitt to find the
basis for such arguments. Abraham Lincoln will do just fine. Indeed, Giorgio

Constellations Volume 13, No 1, 2006. © 2006 Blackwell Publishing Ltd.

 Constitutional Norms and Permanent Emergencies: Sanford Levinson 71

Agamben writes that “In the ten weeks that passed between [the outbreak of war
on] April 15 and [the return of Congress on] July 4, Lincoln in fact acted as an
absolute dictator,” and he notes as well that Schmitt referred to Lincoln as “a
perfect example” of what Schmitt called the “commissarial dictatorship,” that is a
dictatorship entered into ostensibly in order to save the existing constitutional
order.25 Rossiter basically agrees: “The eleven weeks between the fall of Sumter
and July 4, 1861 constitute the most interesting single episode in the history of
constitutional dictatorship. The simple fact that one man was the government of
the United States in the most critical period in all its 165 years; and that he acted
on no precedent and under no restraint, makes this the paragon of all democratic,
constitutional dictatorships.” But Rossiter immediately follows this with an all
important caveat: “[I]f Lincoln was a great dictator, he was a greater democrat.”26
This, I regret to say, is what still is to be determined with regard to the presidency
of George W. Bush.
An obvious truth about the events of 1861–1865 is that they were always per-
ceived as only temporary. Though Lincoln was obviously mistaken in believing,
like most Northerners in 1861, that the war would be won relatively quickly, no
one envisioned that it would continue forever, and it did not. That, of course, is
not the case with the “global war on terror,” which is defined in such a way as to
make almost certain that it will never conclude, whether in my own relatively
limited lifetime or even the lifetime of my youngest reader. The “emergency” is,
then, permanent, and claims of presidential authority with regard to emergency
powers, whether based on the Commander-in-Chief Clause or the Oath of Office,
are equally permanent.
What is most dismaying, in many ways, is not the articulation of arguments
about the need for more, even basically unfettered, presidential power. The
people making such arguments are, in the main, serious men and women who are
responding to something real in our lives, i.e., the threat from terrorists who
indeed do not wish us well and are willing to attack us and our institutions in
order to make their point. What is most truly dispiriting is the basic lack of seri-
ousness on the part of Congress and the general public with regard to the serious
issues that are raised by the August 1, 2002 memorandum. The administration has
chosen to engage in what might be called a strategic withdrawal of its arguments,
and the Republicans who dominate the Congress are more than happy to particip-
ate in this charade.
There are also the courts, of course, and Chief Justice Hughes’s reminder that
they must make their own independent determination about the presence of
sufficient “emergency” to legitimate certain uses of state power. One might take
some comfort from the Supreme Court’s willingness last year to reject some of
the administration’s arguments with regard to indefinite detention of American
citizens in the absence of congressionally authorized suspension of habeas
corpus,27 but, as Zhou en-Lai once famously suggested with regard to the con-
sequences of the French Revolution, it is far too early to tell. Justice O’Connor’s

Constellations Volume 13, No 1, 2006. © 2006 Blackwell Publishing Ltd.

72 Constellations Volume 13, Number 1, 2006

opinion, to put it mildly, did not offer a very robust conception of the rights of
suspected terrorists; more to the point, Justice Thomas’s lone opinion was every-
thing that Carl Schmitt or Clinton Rossiter could have hoped for with regard
giving the president effectively unlimited power to fight the war against terror.
President Bush now (as of September 2005) has two appointments to make to
the Supreme Court, and it would be surprising indeed if he did not pick nominees
who could be counted on to support a strong view of executive power. Indeed,
Judge John Roberts, literally days before his own nomination, joined in a three-
judge opinion issued by the Circuit Court of Appeals for the District of Columbia
that upheld just such a view.28 As Democrats focus all of the energies on preserv-
ing Roe v. Wade (the preservation of which probably is in the political interest of
the Republican Party), it remains to be seen whether they will interrogate Bush’s
nominees on an issue that may be far more important to maintaining constitu-
tional government in the United States. We are, I believe, at a crossroads in
American constitutional development, given an American citizenry that feels
itself threatened by terrorist attacks and an administration that is stunningly ambi-
tious about the scope of executive power. There is no reason to expect the Bush
Administration itself to initiate a cogent debate about such issues. Members of
Congress will do so, presumably, only if they believe that their constituents have
some concern about the implications of Bush Administration arguments. So the
ultimate question is whether “We the People” really do care sufficiently about
preserving traditional “blessings of Liberty” even if, as is almost inevitably the
case, respecting such liberties require accepting some risks that authoritarian gov-
ernments always claim they can forestall if given ever more power and unchecked
discretion. It is, surely, too early to tell.

NOTES

1. See Sanford Levinson, “Torture in Iraq & the rule of law in America,” Daedalus (Summer
2004): 5–9.
2. John Locke, Two Treatises of Government, ed. Peter Laslett, Second Treatise, §160–161
(Cambridge: Cambridge University Press, 1963) (first emphasis added).
3. 4 Wheat. 316 (1819): 407.
4. Ibid., 415 (emphasis added save for crises).
5. James Boyd White, When Words Lose their Meaning (Chicago: University of Chicago
Press, 1984), 265.
6. Records of the Federal Convention, ed. Farrand, rev. ed. (New Haven and London: Yale
University Press, 1937), vol. 1: 346. See also Jon Elster, “Constitutional Bootstrapping in Philadel-
phia and Paris,” in Michel Rosenfeld, ed., Constitutionalism, Identity, Difference, and Legitimacy
(Durham: Duke University Press, 1994), 72.
7. The Complete Anti-Federalist, ed. Herbert Storing (Chicago: University of Chicago Press,
1981), vol. 2: 13.
8. Federalist no. 41 (emphasis added), available at http://www.yale.edu/lawweb/avalon/
federal/fed41.htm.
9. Ex parte Merryman. 17 F. Cas. 144 (1861).
10. 290 US 398 (1934).

Constellations Volume 13, No 1, 2006. © 2006 Blackwell Publishing Ltd.

 Constitutional Norms and Permanent Emergencies: Sanford Levinson 73
11. Moreover, Walter Murphy some years ago discovered in the Library of Congress an
unpublished opinion by Justice Benjamin Nathan Cardozo that ranks with the two published opin-
ions in its depth. It is reprinted in Paul Brest etal., Processes of Constitutional Decision-making, 4e
(New York: Aspen, 2000), 423–24.
12. Carl Schmitt, Political Theology: Four Chapters on the Theory of Sovereignty, tr. George
Schwab (Cambridge, MA: MIT Press, 1985 (1934)), 13.
13. Giorgio Agamben, State of Exception (Chicago: University of Chicago Press, 2005), 2.
14. See Philip Bobbitt, The Shield of Achilles (New York: Knopf, 2003), ch. 8, “From State-
Nations to Nation-States: 1776–1914.” See also Edward Purcell, The Crisis of Democratic Values
(Lexington: University Press of Kentucky, 1973) for the debates within the United States about the
meaningfulness of “the rule of law” in the 1920s.
15. 189 Minn. 429, 249 NW: 336; hereafter cited parenthetically.
16. Michelle Landis Dauber, “The Sympathetic State,” Law and History Review 23 (2005):
387.
17. See William Eskridge and Sanford Levinson, eds., Constitutional Stupidities, Constitu-
tional Tragedies (New York: NYU Press, 1998).
18. See, e.g., Paul Finkelman, “The Second Casualty of War: Civil Liberties and the War on
Drugs,” Southern California Law Review 66 (1993): 1389–1452.
19. “Sovereign is he who decides on the exception,” Political Theology, 5. This is the first line
of the book, and Prof. John P. McCormick describes it as “perhaps the most famous sentence – cer-
tainly one of the most infamous – in German political theory.” McCormick, “The Dilemmas of Dic-
tatorship: Carl Schmitt and Constitutional Emergency Powers,” in David Dyzenhaus, ed., Law as
Politics: Carl Schmitt’s Critique of Liberalism (Durham: Duke University Press, 1998), 217.
20. Schmitt, Political Theology, 13.
21. Clinton Rossiter, Constitutional Dictatorship (Somerset, NJ: Transaction, 2002 (1948)),
288.
22. Cited in ibid., 40.
23. Danner, Torture and Truth (New York: New York Review Books, 2004), 145.
24. Charles Evans Hughes, speech, Elmira, NY, May 3, 1907, in Fred R. Shapiro, ed., The
Oxford Dictionary of American Legal Quotations (New York: Oxford University Press, 1993), 216.
25. Agamben, State of Exception, 20.
26. Rossiter, Constitutional Dictatorship, 224.
27. See Hamdi v. Rumsfeld, 542 US 507 (2004).
28. See Hamdan V. Rumsfeld, WL 1653046 (US Circuit Ct. for DC) (July 15, 2005), rev’g
344 F. Supp. 2nd 152 (Dist. Ct. DC) (2004), cert. granted Nov. 7, 2005.

Sanford Levinson is W. St. John Garwood and W. St. John Garwood, Jr., Centennial
Chair in Law, University of Texas Law School and Professor of Government at
the University of Texas at Austin. He is most recently the editor of Torture: A
Collection (2004) and The Iron Cage of the United States Constitution (forthcoming
2006).

Constellations Volume 13, No 1, 2006. © 2006 Blackwell Publishing Ltd.